Vehicle Technology and Aviation Bill (HC Bill 143)

Vehicle Technology and Aviation BillPage 50

(3) If the contravention notice specifies more than one period of
contravention, the CAA may impose a separate penalty under this
paragraph for each period.

Penalty for contravention of order

10 5The CAA may impose a penalty on a licence holder if it has
determined that the licence holder is contravening, or has
contravened, a requirement of—

(a) an enforcement order, or

(b) an urgent enforcement order that has been confirmed.

10Procedure before imposing penalty

11 (1) Before imposing a penalty on a licence holder under paragraph 9
or 10 the CAA must—

(a) give the licence holder a notice about the proposed
penalty;

(b) 15publish the notice as soon as practicable;

(c) send a copy of the notice to the persons listed in sub-
paragraph (3);

(d) consider any representations made about the proposed
penalty in the period specified in the notice (and not
20withdrawn).

(2) A notice under sub-paragraph (1) must—

(a) state that the CAA proposes to impose a penalty;

(b) state the proposed amount of the penalty;

(c) specify the relevant Chapter 1 requirement;

(d) 25specify the act or omission that the CAA has determined
constitutes a contravention of the requirement.

(3) The persons are—

(a) any owners or operators of aircraft, or any bodies
representing them, that the CAA considers appropriate;

(b) 30any owners or managers of aerodromes, or any bodies
representing them, that the CAA considers appropriate;

(c) the Secretary of State.

(4) In the case of a penalty calculated entirely or partly by reference to
a daily amount (see paragraph 13(2)), a notice must specify—

(a) 35the day on which daily amounts would begin to
accumulate;

(b) the day on which, or the circumstances in which, they
would cease to accumulate.

(5) The period specified in a notice under sub-paragraph (1) for
40making representations must be a period of not less than 21 days
beginning with the day on which the notice is given to the licence
holder.

(6) Before varying the proposed amount of a penalty, the CAA
must—

Vehicle Technology and Aviation BillPage 51

(a) give the licence holder on whom the penalty is to be
imposed a notice about the proposed variation;

(b) publish the notice as soon as practicable;

(c) send a copy of the notice to the persons listed in sub-
5paragraph (3);

(d) consider any representations made about the proposed
variation in the period specified in the notice (and not
withdrawn).

(7) In the case of a penalty calculated entirely or partly by reference to
10a daily amount (see paragraph 13(2)), the reference in sub-
paragraph (6) to varying the proposed amount includes—

(a) varying the day on which daily amounts would begin to
accumulate;

(b) varying the day on which, or the circumstances in which,
15they would cease to accumulate.

(8) The notice under sub-paragraph (6) must—

(a) specify the proposed variation;

(b) give the CAA’s reasons for the proposed variation.

(9) The period specified in a notice under sub-paragraph (6) for
20making representations must be a period of not less than 21 days
beginning with the day on which the notice is given to the licence
holder.

(10) The CAA may withdraw a notice under sub-paragraph (1) or (6) at
any time by giving notice to the licence holder on whom it
25proposed to impose the penalty.

(11) As soon as practicable after giving a notice under sub-paragraph
(10), the CAA must—

(a) publish the notice;

(b) send a copy of the notice to the persons listed in sub-
30paragraph (3).

Procedure after imposing a penalty

12 (1) As soon as practicable after imposing a penalty under paragraph
9 or 10 the CAA must—

(a) give a notice to the licence holder on whom the penalty is
35imposed;

(b) publish the notice;

(c) send a copy of the notice to the persons listed in sub-
paragraph (3).

(2) The notice must—

(a) 40state that the CAA has imposed a penalty;

(b) state the amount of the penalty;

(c) specify the relevant Chapter 1 requirement;

(d) specify the act or omission that the CAA has determined
constitutes a contravention of the requirement;

Vehicle Technology and Aviation BillPage 52

(e) specify a reasonable period within with the penalty must
be paid or reasonable periods within which different
portions of the penalty must be paid.

(3) The persons are—

(a) 5any owners or operators of aircraft, or any bodies
representing them, that the CAA considers appropriate;

(b) any owners or managers of aerodromes, or any bodies
representing them, that the CAA considers appropriate;

(c) the Secretary of State.

(4) 10In the case of a penalty calculated entirely or partly by reference to
a daily amount (see paragraph 13(2)), the notice must specify—

(a) the day on which the daily amounts being to accumulate;

(b) the day on which, or the circumstances in which, they
cease to accumulate.

(5) 15As soon as practicable after daily amounts cease to accumulate,
the CAA must—

(a) give a notice to the licence holder on whom the penalty
was imposed confirming the day on which they ceased to
accumulate;

(b) 20publish the notice;

(c) send a copy of the notice to the persons listed in sub-
paragraph (3).

Amount of penalty

13 (1) The amount of a penalty imposed on a person under paragraph 9
25or 10 must be the amount that the CAA determines to be—

(a) appropriate, and

(b) proportionate to the contravention for which it is imposed.

(2) The penalty may consist of either or both of the following—

(a) a fixed amount (see paragraph 14);

(b) 30a daily amount (see paragraph 15).

(3) In determining the amount of a penalty, the CAA must have
regard, in particular, to—

(a) any representations made to it in a period specified in a
notice proposing to give a penalty under paragraph 11(1)
35or (6) (and not withdrawn);

(b) any steps taken by the licence holder on whom the penalty
is to be imposed towards complying with the Chapter 1
requirement specified in the notice under paragraph 11(1);

(c) any steps taken by that licence holder towards remedying
40the consequences of the contravention of the requirement.

Amount of penalty: fixed amount

14 (1) A penalty imposed on a licence holder under paragraph 9 or 10 for
a contravention may not consist of or include a fixed amount
exceeding 10% of the licence holder’s qualifying turnover for the
45qualifying period.

Vehicle Technology and Aviation BillPage 53

(2) A licence holder’s qualifying turnover is the licence holder’s
turnover from its provision of air traffic services.

(3) The qualifying period is the last regulatory year ending on or
before the day on which the notice proposing the penalty is given
5under paragraph 11(1) (“the notice day”), except in the cases
described in sub-paragraph (4).

(4) Those cases are—

(a) where a licence holder was not authorised to provide air
traffic services in respect of a managed area throughout the
10last regulatory year that ends on or before the notice day;

(b) where there is no regulatory year or the last regulatory
year ended more than 12 months before the notice day;

(c) where a licence holder has not provided the CAA with
accounts prepared in accordance with the licence for the
15last regulatory year that ends on or before the notice day.

(5) In those cases—

(a) if the licence holder was authorised to provide air traffic
services in respect of a managed area on the notice day, the
qualifying period is the year ending with the notice day
20(or, if shorter, the period ending with the notice day during
which the licence holder was authorised to provide such
services in respect of such an area);

(b) otherwise, the qualifying period is the year ending with
the last day before the notice day on which the licence
25holder was authorised to provide air traffic services in
respect of a managed area (or, if shorter, the period ending
with the notice day during which the licence holder was
authorised to provide such services in respect of such an
area).

(6) 30A licence holder’s qualifying turnover for a qualifying period is to
be taken to be the qualifying turnover for that period as reported
in accounts that the licence holder is required to prepare by a
licence condition, unless regulations under sub-paragraph (7)
provide otherwise.

(7) 35The Secretary of State may by regulations—

(a) amend or otherwise modify the definition of qualifying
turnover;

(b) make provision about how a licence holder’s qualifying
turnover for a qualifying period is to be calculated.

(8) 40The regulations may in particular—

(a) make provision about cases in which turnover is or is not
to be treated as qualifying turnover for a qualifying period;

(b) provide that a licence holder’s qualifying turnover for a
qualifying period is to be taken to be the qualifying
45turnover reported in accounts specified or described in the
regulations;

(c) provide that a licence holder’s qualifying turnover is to be
calculated entirely or partly using accounting rules
specified or described in the regulations.

Vehicle Technology and Aviation BillPage 54

(9) In this paragraph “regulatory year”, in relation to a licence holder,
means a year for which the licence holder was required to prepare
accounts by a licence condition for air traffic services provided in
respect of a managed area.

5Amount of penalty: daily amount

15 (1) In relation to a penalty under paragraph 9 or 10, a daily amount is
an amount payable where the contravention in respect of which
the penalty is imposed continues after it is imposed.

(2) A penalty under paragraph 9 may not consist of or include a daily
10amount unless that contravention has been continuous since the
end of the representation period for the contravention notice in
which the contravention was specified.

(3) A daily amount must not exceed 0.1% of the licence holder’s
qualifying turnover for the qualifying period.

(4) 15A daily amount is payable in respect of each day in a period
specified by the CAA in the notice under paragraph 12 stating that
it has imposed the penalty.

(5) A specified period during which daily amounts accumulate must
be the period that the CAA considers appropriate, subject to sub-
20paragraphs (6) and (7).

(6) The period must begin after the day on which the CAA gives the
notice under paragraph 12.

(7) The period must end before—

(a) the day on which the contravention specified in the notice
25under paragraph 12 ceases, or

(b) if more than one contravention is specified in that notice,
the day on which the last of those contraventions ceases.

(8) In this paragraph “qualifying turnover” and “qualifying period”
have the same meaning as in paragraph 14.

30Use of powers under Competition Act 1998

16 (1) Before exercising a power listed in sub-paragraph (3), the CAA
must consider whether it would be more appropriate to proceed
under the Competition Act 1998.

(2) The CAA must not exercise such a power to the extent that it
35considers it would be more appropriate to proceed under that Act.

(3) Those powers are—

(a) the power to give a contravention notice under paragraph
1;

(b) the power to give an enforcement order under paragraph
403;

(c) the power to give and confirm an urgent enforcement
order under paragraphs 5 and 6;

(d) the power to impose penalties under paragraphs 9 and 10.

Vehicle Technology and Aviation BillPage 55

Part 2 Appeals against orders and penalties

Appeals against enforcement orders and urgent enforcement orders

17 (1) A licence holder may appeal to the Competition Appeal Tribunal
5(referred to in this Schedule as “the Tribunal”) against—

(a) an enforcement order given to the licence holder, or

(b) an urgent enforcement order given to the licence holder
that has been confirmed.

(2) The appeal may be against one or more of the following—

(a) 10a decision to give the order or, in the case of an urgent
enforcement order, to confirm the order;

(b) a decision as to the steps specified in the order;

(c) a decision as to the period allowed for taking those steps.

(3) The making of an appeal under this paragraph against an
15enforcement order suspends the effect of the order until the appeal
is decided or withdrawn, unless the Tribunal orders otherwise.

(4) The making of an appeal under this paragraph against an urgent
enforcement order does not suspend the effect of the order, unless
the Tribunal orders otherwise.

20Appeals against modifications or revocations of existing orders

18 (1) A person may appeal to the Tribunal against—

(a) a decision to modify or revoke an enforcement order, or

(b) a decision to modify or revoke an urgent enforcement
order that has been confirmed.

(2) 25An appeal under this paragraph may be made only by a person—

(a) who is not the person to whom the order was given, but

(b) who appears to the Tribunal to have sufficient interest in
the decision.

(3) The making of an appeal under this paragraph against a
30modification or revocation of an order suspends the modification
or revocation until the appeal is decided or withdrawn, unless the
Tribunal orders otherwise.

Appeals against penalties

19 (1) A licence holder may appeal to the Tribunal against a penalty
35imposed on the licence holder under paragraph 9 or 10.

(2) The appeal may be against one or more of the following—

(a) a decision to impose the penalty;

(b) a decision as to the amount of the penalty;

(c) in the case of a penalty calculated entirely or partly by
40reference to a daily amount, a decision as to the period
during which the daily amounts accumulate;

Vehicle Technology and Aviation BillPage 56

(d) a decision as to the period allowed for payment of the
penalty.

(3) Where a licence holder appeals under this paragraph against a
penalty, the CAA may not require the licence holder to pay the
5penalty until the appeal is decided or withdrawn.

Decisions on appeal

20 (1) The Tribunal may allow an appeal under paragraph 17, 18 or 19
only to the extent that it is satisfied that the decision appealed
against was wrong on one or more of the following grounds—

(a) 10that the decision was based on an error of fact;

(b) that the decision was wrong in law;

(c) that an error was made in the exercise of a discretion.

(2) It may—

(a) confirm or set aside the order, modification, revocation or
15penalty;

(b) give the CAA any directions it considers appropriate,
including directions about the time within which the CAA
must act.

(3) It may not direct the CAA to do anything that the CAA would not
20have the power to do apart from the direction.

(4) When deciding an appeal under paragraph 17, 18 or 19 (including
giving directions) the Tribunal must have regard to the matters in
respect of which duties are imposed on the CAA by section 2.

Further appeals

21 (1) 25An appeal lies to the appropriate court on a point of law arising
from a decision of the Tribunal under paragraph 20, including a
direction.

(2) An appeal under this paragraph may be brought by a party to the
proceedings before the Tribunal.

(3) 30An appeal may not be brought without the permission of—

(a) the Tribunal, or

(b) the appropriate court.

(4) “The appropriate court”—

(a) in the case of an appeal from proceedings in England and
35Wales or Northern Ireland, means the Court of Appeal;

(b) in the case of an appeal from proceedings in Scotland,
means the Court of Session.

Part 3 Interpretation

22 40References in this Schedule to remedying the consequences of a
contravention of a Chapter 1 requirement include paying an
amount to a person—

Vehicle Technology and Aviation BillPage 57

(a) by way of compensation for loss or damage suffered by the
person, or

(b) in respect of annoyance, inconvenience or anxiety suffered
by the person.”

Section 17

5SCHEDULE 4 New Schedule C1 to the Transport Act 2000

This Schedule sets out the new Schedule C1 to the Transport Act 2000, to be
inserted after Schedule B1 to that Act (inserted by section 17 above)—

“Schedule C1 Information

10Part 1 Power to obtain information

Power to obtain information

1 (1) The CAA may by notice require a person to provide—

(a) information, or

(b) 15a document that is in the person’s custody or under the
person’s control.

(2) In this Schedule “document” means anything in which
information is recorded.

(3) The CAA may give a notice under this section only in respect of
20information or documents that it reasonably requires for the
purpose of carrying out its functions under section 34 or Schedule
B1.

(4) The notice may require the information or document to be
provided—

(a) 25at a time and place specified in the notice;

(b) in a form and manner specified in the notice.

(5) The notice may not require a person to provide information or
documents that the person could not be compelled to provide in
evidence in civil proceedings before the appropriate court.

(6) 30In this paragraph, “appropriate court”—

(a) in relation to England and Wales and Northern Ireland,
means the High Court;

(b) in relation to Scotland, means the Court of Session.

Vehicle Technology and Aviation BillPage 58

Part 2 Enforcement: information

Enforcement of information notice

2 (1) If a person fails to comply with a notice under section 25 without
5reasonable excuse, the CAA may do either or both of the
following—

(a) impose a penalty on the person;

(b) enforce the duty to comply with the notice in civil
proceedings for an injunction or, in Scotland, for specific
10performance of a statutory duty under section 45 of the
Court of Session Act 1988.

(2) The amount of the penalty must be the amount that the CAA
determines to be—

(a) appropriate, and

(b) 15proportionate to the failure in respect of which it is
imposed.

(3) A penalty may consist of either or both of the following—

(a) a fixed amount;

(b) an amount payable in respect of each day in a period
20specified by the CAA (a “daily amount”).

(4) A fixed amount must not exceed £2,000,000.

(5) A daily amount must not exceed £100,000.

(6) A specified period during which daily amounts accumulate must
be the period that the CAA considers appropriate, subject to sub-
25paragraphs (7) and (8).

(7) The period must begin after the day on which the CAA gives the
notice under paragraph 5 stating that it has imposed the penalty.

(8) The period must end before the day on which the person provides
the information or documents specified in the notice under
30paragraph 1.

(9) The Secretary of State may by regulations replace the amount for
the time being specified in sub-paragraph (4) or (5).

Penalty for providing false information

3 (1) The CAA may impose a penalty on a person where it is satisfied
35beyond reasonable doubt that the person, in giving information to
the CAA, has committed an offence under section 101 (making of
false statements etc).

(2) Where a penalty is imposed on a person under this paragraph by
the CAA, that person may not at any time be convicted of the
40offence under section 101 in respect of the act or omission giving
rise to the penalty.

Vehicle Technology and Aviation BillPage 59

(3) The amount of a penalty imposed on a person under this section
must be the amount that the CAA determines to be—

(a) appropriate, and

(b) proportionate to the action in respect of which it is
5imposed.

Penalty for destroying documents etc.

4 (1) The CAA may impose a penalty on a person if the person
intentionally alters, suppresses or destroys a document that the
person is required to produce by a notice under paragraph 1.

(2) 10The reference in sub-paragraph (1) to suppressing a document
includes a reference to destroying the means of reproducing
information recorded otherwise than in a legible format.

(3) The amount of a penalty imposed on a person under this section
must be the amount that the CAA determines to be—

(a) 15appropriate, and

(b) proportionate to the action in respect of which it is
imposed.

Procedure before imposing a penalty

5 (1) Before imposing a penalty on a person under paragraph 2, 3 or 4,
20the CAA must—

(a) give the person a notice about the proposed penalty;

(b) publish the notice as soon as practicable;

(c) send a copy of the notice to the persons listed in sub-
paragraph (4);

(d) 25consider any representations made about the proposed
penalty in the period specified in the notice (and not
withdrawn).

(2) The notice under sub-paragraph (1) must—

(a) state that the CAA proposes to impose a penalty;

(b) 30state the proposed amount of the penalty;

(c) give the CAA’s reasons for imposing the penalty.

(3) In the case of a penalty under paragraph 2 calculated entirely or
partly by reference to a daily amount, the notice under sub-
paragraph (1) must specify—

(a) 35the day on which daily amounts would begin to
accumulate;

(b) the day on which, or the circumstances in which, they
would cease to accumulate.

(4) The persons are—

(a) 40any owners or operators of aircraft, or any bodies
representing them, that the CAA considers appropriate;

(b) any owners or managers of aerodromes, or any bodies
representing them, that the CAA considers appropriate;

(c) the Secretary of State.